Day on Torts

April 4, 2015

Tennessee Requires Formal Notice Before Each Medical Malpractice Filing

The issue of whether a Tennessee plaintiff who nonsuits his or her first medical malpractice (now heatlh care liability) complaint must give a second notice before re-filing is a closed matter given the recent ruling in Foster v. Chiles. In the recent case of Potter v. Perrigan, No. E2013-01442-COA-R3-CV (Tenn. Ct. App. March 26, 2015), just such a scenario played out.

Plaintiffs gave pre-suit notice on January 8, 2009; they filed their initial suit on April 8, 2009; then on September 8, 2009, they voluntarily dismissed the action. One year later, pursuant to the savings statute, plaintiffs filed a second complaint on September 8, 2010. Attached to this complaint was a certificate of good faith and copy of the previously filed pre-suit notice. Plaintiffs did not send defendants a second pre-suit notice before re-filing their claims. Upon motion of the defendant, the trial court dismissed for failure to comply with Tenn. Code Ann. § 29-26-121. The Court of Appeals initially reversed this decision, holding that “Plaintiffs fulfilled the notice requirement[.]” Defendant then appealed to the Tennessee Supreme Court, which remanded the case for reconsideration in light of an opinion it issued in January, 2015.

April 1, 2015

Adding Employer As Defendant More Than One Year After Incident

by The Law Offices of John Day, P.C.

When a plaintiff files a auto or other personal injury lawsuit, he may not be aware of all the potential defendants that should be named. Fairly often, a plaintiff may seek leave to amend his complaint and add a defendant even after the statute of limitations on the underlying claim has passed, usually citing the discovery rule as justification for this allowance. In a recent negligence case, the Tennessee Court of Appeals explored some of the limits on such allowances.

In Smith v. Hauck, No. M2014-01383-COA-R3-CV (Tenn. Ct. App. March 25, 2015), plaintiffs were in a car struck from behind by a vehicle driven by defendant on an interstate exit ramp. The accident occurred on June 25, 2012, and at the time there was no indication that defendant was driving in the course of his employment—i.e., neither defendant nor the police report mentioned this fact, and he was driving his personal car with no employer insignia. Plaintiffs filed a negligence suit on June 7, 2013, within the one-year statute of limitations, which defendant answered on August 26, 2013. Defendant’s answer did not state or allude to the fact that he was driving on employer business at the time of the accident. Four days later, plaintiffs served interrogatories and requests for production of documents on defendant. These discovery requests included items seeking information related to defendant’s employer and his purpose for driving at the time of the accident. When defendant’s responses were six weeks past due, plaintiffs filed a motion to compel on November 8, 2013. Defendant responded to the interrogatories on December 4, 2013, and for the first time in those responses stated that “he was traveling to St. Thomas Hospital to participate in surgery as part of his employment with St. Jude Medical.” On the same day they received these responses, plaintiffs filed a motion to add St. Jude Medical as a defendant. The motion was granted and plaintiffs filed their amended complaint on December 20, 2013. St. Jude then filed a motion to dismiss based on the one-year statute of limitations, which the trial court granted, but the Court of Appeals overturned.

March 31, 2015

New Local Rules in Tennessee’s 23rd Judicial District

by The Law Offices of John Day, P.C.

The judge’s in Tennessee’s 23rd Judicial District – Cheatham, Dickson, Houston, Humphreys and Stewart Counties – have adopted new rules of court for the circuit and chancery courts.

Among the new rules is a requirement that all civil cases except appeals from the general sessions court be mediated before they can be set for trial. Rule 3.04.

March 30, 2015

Tennessee Products Liability Claim Falls Short

by The Law Offices of John Day, P.C.

A recent Court of Appeals case illustrates that trying to make a Tennessee product liability claim against a product that did not technically cause the injury can be quite difficult. In Long v. Quad Power Products, LLC, No. E2013-02708-COA-R3-CV (Tenn. Ct. App. March 20, 2015), plaintiff was injured while pressure testing a product at work. Plaintiff tried to turn a ball valve in the test, and when the valve would not turn he “used an extension or cheater bar to continue his attempt to relieve pressure.” A mechanism attached to the valve then broke, which caused extremely high-pressured water to hit plaintiff, injuring his left arm and shoulder. Plaintiff eventually had to have his left arm amputated. At the time of appeal, there was only one defendant remaining in the case: the distributor from whom plaintiff’s employer purchased the ball valve used in the testing system. According to this defendant, however, this ball valve would have only been in its possession for around 24 hours and was not “assembled, designed, manufactured, or altered” by defendant. After some procedural history, the case eventually boiled down to a strict liability failure to warn claim on which the trial court granted summary judgment to defendant, and the Court of Appeals affirmed.

When granting summary judgment for defendant, the trial court made certain relevant findings of fact: that the “failed component was not a part of the valve sold by defendant;” that the ball valve had actually been removed from service several days before the accident because it was difficult to use, but that in violation of the employer’s own safety rules it was later put into the test panel used by plaintiff; that a “simple inspection” by the employee who put the valve in the test panel would have showed that it was corroded; and that if the employer “had properly supported the valve in its test panel, the stress in the connected components would not have been sufficient to cause the connecting components to fracture.” In affirming summary judgment, the Court of Appeals relied on these facts and addressed four issues raised by plaintiff.

March 25, 2015

When Does Bad Conduct Rise to the Level of Outrageous Conduct?

by The Law Offices of John Day, P.C.

A recent Tennessee Court of Appeals case serves as a reminder that the bar for proving outrageous conduct is high for plaintiffs attempting to make a case for intentional infliction of emotional distress (“IIED”). In Kindred v. Nat’l College of Bus. and Tech., Inc., No. W2014-00413-COA-R3-CV (Tenn. Ct. App. March 19, 2015), plaintiff sued her former college for, among other things, IIED related to the cancellation of her classes for one term. Plaintiff had her GED, and at the time of her initial enrollment the school did not require students to have an official copy of their equivalency certificate in their file. That policy later changed. Two weeks prior to the start of term 107, plaintiff went to the college to get a copy of that term’s schedule and was informed that her file did not have an official copy of her GED and that she was thus not in compliance with the school’s requirements. Plaintiff alleged that she presented the school with her GED equivalency card, but she did not dispute that she took no steps to get an official copy of her GED into her file.

Plaintiff started attending classes at the beginning of term 107, but after one week the director of the campus cancelled plaintiff’s schedule because her file did not comply with the official copy requirement. The director told plaintiff that she would not be charged tuition for that term and that she could return to classes the next term as long as she had provided an official copy of her GED. Plaintiff provided the school with her GED on the same day she was informed about her schedule cancellation, but the director refused to reinstate her for that term. Two months later, plaintiff enrolled in another term (term 111) at the same college. She was not allowed to enroll until she paid an outstanding balance for textbooks from term 107 (the cancelled term), which she paid after protest. Plaintiff attended two additional terms at the school, but at the end of term 113 she received a failing grade, which she unsuccessfully challenged. After that, plaintiff alleged that “she could no longer suppress her pain and distress that began with [defendant’s] degrading termination of her enrollment eight months earlier. Plaintiff further allege[d] that this forced her to cease her attendance at [the school] and abandon her educational/professional goals.”

March 23, 2015

No Proof on Notice of Hazard Results in Dismissal of Case

by The Law Offices of John Day, P.C.

In a recent premises liability case, the Tennessee Court of Appeals overturned a trial court decision for plaintiff on the basis of lack of actual or constructive notice of a dangerous condition, a key element in any premises liability case. In Barkley v. Shelby Co. Board of Educ., No. W2014-00417-COA-R3-CV (Tenn. Ct. App. March 18, 2015), plaintiff, a grandmother, visited an elementary school attended by two of her grandchildren. While there, she slipped and fell near a hand washing station in the hallway. Plaintiff alleged that there was water on the floor, and that such water was the cause of her fall.

Because the school was operated by the Shelby County Board of Education, this action fell under the Governmental Tort Liability Act (“GTLA”). The trial court found defendant liable, though it did reduce plaintiff’s award pursuant to comparative fault findings. On appeal, one issue raised by defendant was whether the trial court erred by not finding defendant immune from suit under the GTLA. The Court of Appeals, however, did not get that far, instead focusing solely on the issue of lack of notice.

Under the GTLA, a plaintiff making a premises liability claim must prove that “(1) the governmental entity owns and controls the location or instrumentality alleged to have caused the injury; (2) a dangerous, defective, or, in the case of sidewalks, unsafe condition caused the injury; (3) the governmental entity had actual or constructive notice of the dangerous condition; and (4) the governmental entity breached either its duty to eliminate the condition or its duty to warn of the condition.” Here, the Court stated that there was conflicting evidence regarding whether there was water on the floor causing the fall or whether plaintiff’s shoes caused her to fall and drop a cup of water she was holding, which accounted for the water on the floor. Either way, the Court summarily determined that, regarding actual notice, there was “no evidence in support of a determination that the Board had notice of water on the floor at or near the location of [plaintiff’s] fall, sufficient either to remove its immunity or to otherwise establish liability.”

March 16, 2015

Sponge Case Falls Under HCLA Not Ordinary Negligence

by The Law Offices of John Day, P.C.

In Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. March 10, 2015), the Court of Appeals recently took up the issue of whether a case sounds in ordinary negligence or health care liability. After a hernia repair, plaintiff developed an infection requiring additional surgery to place a wound vacuum and a sponge. One defendant was allegedly tasked with changing the sponge as necessary, and another of the defendants was charged with removing the sponge at the appropriate time. When the wound vacuum was removed the sponge was not, eventually leading the wound to burst. Plaintiff sued defendants alleging that they “were negligent by failing to either remove the sponge or communicate with the other physicians to ensure that the sponge had been removed.”

Defendant filed a motion to dismiss asserting that the claims fell under the Health Care Liability Act (“HCLA”) and that plaintiff’s failure to comply with the pre-suit notice and certificate of good faith requirements thus necessitated dismissal of the case. Plaintiff responded that he was claiming only ordinary negligence and was therefore not required to comply with the HCLA. Plaintiff asserted that “the fact that the alleged malpractice lies within the common knowledge of laypersons” and therefore did not require expert testimony was proof that the claim sounded in ordinary negligence.

The trial court denied the motion to dismiss, and the Court of Appeals granted interlocutory appeal to address “[w]hether an action seeking compensatory damages for injuries sustained as a result of a foreign object having been left in the patient’s body following surgery is a ‘health care liability action’ as defined by the [HCLA], such that the mandatory presuit provisions set forth in Tennessee Code Annotated sections 29-26-121 and 29-26-122 apply.”

March 16, 2015

Sandy Hook Parents Sue Mother of Murderer

by The Law Offices of John Day, P.C.

The parents of the Sandy Hook Elementary School shooting have sued the shooter’s mother.

The complaint alleges that the late Nancy Lanza, mother of Adam Lanza, negligently allowed her son access to the Bushmaster A-15 used in the shootings when she knew or should have known made her son a danger to others.

The shootings resulted in the deaths of twenty children and six adults.

March 6, 2015

Trial Court Cannot Impose Additional Limitations on Ex Parte Interviews in Healthcare Liability Cases.

by The Law Offices of John Day, P.C.

Tenn. Code Ann. § 29-26-121(f) allows defendants in a Tennessee medical malpractice (now called healthcare liability) case to petition the court for a “qualified protective order allowing the defendant…and their attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the relevant patient’s treating ‘healthcare providers[.]’” The section goes on to specifically list four conditions placed on these interviews: (1) that the petition identify healthcare providers the defendant seeks to interview; (2) that plaintiff may object and seek to limit or prohibit the interview, which “may be granted upon good cause shown that a treating healthcare provider does not possess relevant information[;]” (3) that the protective order should limit the use/dissemination of the information and provide for its return or destruction after the litigation; and (4) that the protective order expressly states that a healthcare provider’s participation in such interview is voluntary.[1] In two almost identical recent cases, the Court of Appeals took up the issue of whether a trial court may place additional conditions or restraints on these interviews.

In both Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015) and S.W. v. Baptist Memorial Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015), plaintiffs filed health care liability claims against defendants for alleged professional negligence. At issue in these appeals were the ex parte interviews defendants wanted to conduct with plaintiffs’ treating physicians without plaintiffs or their counsel present. Both sets of defendants moved for qualified protective orders to conduct these interviews, pursuant to § 29-26-121(f), which plaintiffs opposed. The trial courts granted the qualified protective order for the interviews but ultimately placed eight conditions on the interviews in both cases:

(1) That participation by healthcare providers in the interviews was voluntary;

February 28, 2015

Upcoming Civil Case Arguments at the Tennessee Supreme Court

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court will hear two health care liability disputes among four cases scheduled for oral arguments March 4, 2015 in Jackson, Tennessee, one of which will address an interesting civil procedure question.

The first case concerns the procedures required when filing a health care liability lawsuit. At the time the suit was filed, state law required a plaintiff to file a certificate within 90 days of the initiation of a lawsuit, confirming that the plaintiff has consulted with medical experts before filing the suit and stating whether the plaintiff’s lawyer has ever been in violation of the law requiring the certificate. In this case from Dyer County, the attorney, who had never violated the statute, filed the required certificate but did not state that he had zero prior violations of the statute. The defendants sought dismissal of the case based on that omission. The plaintiffs sought to dismiss the case with the option to refile it.

The trial court allowed the dismissal and the defendants appealed. The Supreme Court will consider whether the failure to indicate zero prior violations of the law constitutes a failure to comply with the law requiring the good faith certificate. The case is Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D.